Marbury v. Madison is Out and Roberts v. America is In

RUSH: Look, if the chief justice of the Supreme Court is gonna say that it's his job to find every way possible to make sure that the act remains constitutional as opposed to throwing it out, then you got to do that. You've got to find the act constitutional. You've got to do whatever you can to make sure the act is sustained or survives. Well, let me translate that for you. What that means is it is now the self-appointed role of the Supreme Court to find ways to uphold unconstitutional laws and regulations.

In which case, we don't need a Supreme Court. The Congress can now just pass anything, if this is gonna be consistent from the court. If whatever they pass, the court's gonna bend every which way possible to find it constitutional -- including rewriting it, which is what happened. You talk about activism? By Justice Roberts stretching as far as he can to make sure he's not called an activist, he ends up being the most activist judge on the Supreme Court I can recall since Brennan or Douglas!

For crying out loud, he just rewrote it, in order to save the act. It is their job to uphold unconstitutional laws and regulations? That's a new one on me. I thought in Marbury v. Madison, the court assigned to itself the role of determining whether laws were constitutional or not. Apparently, Marbury v. Madison is out now, and Roberts v. America is in. In which case, the court's role is to find any way possible, without limits, to uphold unconstitutional law. That's why I'm sick. Because that's what has happened. This is the mother of all judicial activism! As Saddam Hussein would say.

Here's Ty in Indianapolis. We continue on the phones on Open Line Friday. Hello, sir.

CALLER: Hello. Mega dittos, Rush.

RUSH: Thank you very, very much.

CALLER: Well, I agree with you that there's not much of a silver lining. This isn't the worst law ever passed, though. Shortly after the country was even founded, there were laws called the Alien and Sedition Acts. I think we all learned about it in Social Studies.

RUSH: Right.

CALLER: Now, that was before Marbury v. Madison, so there was no judicial review. But the Supreme Court justices actually prosecuted people under this law. So they clearly didn't have any objections.

RUSH: People like me were prosecuted under that law.

CALLER: Exactly right, yeah. So in their day jobs (they used to have to work for a living), they were prosecuting people under it and had no problems with it. But in the very next election, the people turned out that Congress and they completely changed everything. And then in 1960, I'm forgetting the name of the justice, but he said that that was a much truer sense of what was constitutional -- the will of the American people -- than anything any Supreme Court justice had ever done. So...

RUSH: Well, but if you were talking to Roberts instead of me, what he would tell you is, "That's exactly right, and I just upheld the will of the people. Because the will of the people is expressed in Obamacare. The elected representatives of the people passed the law. So, therefore, it's my job to make sure it stays constitutional because this is what the people wanted."

CALLER: You and I know that it wasn't the will of the people, but that's not my point. My point is that if we act now -- if we, as you said today, declare, "Game on!" -- if we elect a new administration, elect a new Congress. If we make our meaning unmistakable --

RUSH: No, I understand. That's exactly what we have to do. That's exactly where we are. I agree with you 100%.

CALLER: I'm just trying to bring a little sunshine and say, "Hey, these people aren't the end all, be all of what the Constitution is. We are." And someday maybe some justice will say, "Hey, clearly the American people did not support this interpretation. Clearly the American people don't want to be taxed simply because they exist." We have the right to life. We don't have the responsibility, necessarily, to ensure that everyone else gets insurance.

RUSH: All of that's exactly right. The question is: How many people between now and November will come to accept this as you have just described it, versus how many people will be told that, "Hey, your health care's free now and the rich are paying for it. Everything's back on track now. You don't have to do anything. Everything is cool."

CALLER: Well, it's not going to be easy, I guess.

RUSH: No, no. Of course not. Look, I've got a little bit too much idealism in me today. I'm ticked off that we are here. I'm not in denial. I know we're here. I know what we have to do. I know what has to happen. NOVEMBER. All caps. Italicized and in bold. NOVEMBER. I know exactly what has to happen. I am just sick that it's gotten to this point. But I am not paralyzed with my sickness. I'm not defeated here. I'm just... I am boiling mad and sick at the same time that it's gotten here. (interruption) Ah, no. I didn't see this story that I was right about... (interruption)

Snerdley is asking me if I saw the stories that said I was right. There weren't any stories that said I was right. There were just stories about the speculation that he changed his mind at the last minute, and people are trying to figure out why. (interruption) Well, that was some of the gossip that was going around on the blogs yesterday. It was so inexplicable, people were trying to come up with answers that they could understand because of the result. As I say, "I hate to be redundant here, but sometimes it's necessary." All these pundits....

I'm really down on a lot of things today, folks. All these pundits are saying, "Boy, what a smart guy! Wow, nobody predicted this. This guy is brilliant!"

Well, why didn't we predict it? It's because we're constrained by the law! We weren't thinking outside the law. If somebody told us, "Hey, make a prediction on the law not mattering," then maybe somebody would have come up with this. So nobody came up with this, nobody made this prediction, and the pundits are marveling at the brilliance and the sharp mind of Roberts. Well, sorry, but spare me. I don't believe there's any brilliance here. I'm getting sick and tired of people marveling at each other for their so-called intelligence, when there isn't any.

"Wow, we didn't predict that. This guy is smarter than we are! This is really cool. We got to find a way to acknowledge this."

Nobody ever tried a stunt like this in 200 years of the Supreme Court. That's why nobody predicted it. How many of you, when you considered every possibility here, said, "You know what? I think the court's gonna actually end up calling this a tax increase!" Who in their right mind would think that? Who in their right mind would predict that as the ultimate way in which the case would be decided? Nobody. Now, as to what happened to cause Justice Roberts to change his mind, if he did, I don't think we'll ever know. I don't think the other justices will ever talk about it. I don't think they'll write about it if something did go on. They're pretty closed-mouthed about this.

CALLER: It's a day where it's very depressing and disturbing to me at a level that's beyond some of the other things that have gone on in the last three or four years. And I was hoping maybe you could make some sense of the question I have. If you step back and look at it, it seems to me like if they had a vote on the question of going forward as a tax at the Supreme Court itself, the only justice that was in favor of that was Roberts. It would be an 8-1 disagreement that it is a tax, correct?

RUSH: Nope. I know where you're going with this. You're asking me: Did one of the nine determine this?

CALLER: Yes.

RUSH: You had the four libs who voted for the bill, no matter what. The four libs -- Ginsburg, Sotomayor, Kagan, and Breyer -- were gonna vote for this no matter what. They hoped for the Commerce Clause. You got four votes there. And then you got the other four. As it turns out, they were dead set against it from top to bottom, side to side: Kennedy, Scalia, Alito, Thomas. (You've got 4-4 right now.) Now you got Roberts left. So whatever Roberts does, it's gonna end up being 5-4.

So Roberts decides that he wants this thing found constitutional for whatever reason. We don't know what happened. But he knows the Commerce Clause angle isn't constitutional. So he makes up this tax business, and then he joins the four liberals and it makes it 5-4. Then he writes the majority. He assigns it to himself, he writes the majority, and he alone cites (as the reason) this tax business. That causes Ginsburg and the liberals to dissent from his majority opinion. Because they don't like the fact that he ignored commerce.

They wanted it decided on the basis of the Commerce Clause. Roberts didn't do that. So Ginsburg writes a dissent. This is what had everybody confused. Why is Ginsburg writing a dissent when she's on the winning side? Nobody could figure this out. "What's she dissenting against?" What she was dissenting against was that she didn't want commerce in there. If Roberts is going to decide this on a tax basis, then don't even mention commerce. She was upset that Roberts, in his ruling, decided that the Commerce Clause technique was unconstitutional.

Remember, that was the first thing that was reported. And by the way, the news media is spanking itself for not waiting, for being too eager. They all reported that. Well, they had no choice. That's how the court announced it! We were defrauded in I can't tell you the number of ways. We were defrauded, we were defrocked, and then we were teased and mocked. Because the first thing the court released was: "Commerce Clause mandate unconstitutional!"

"Yaaaaay! Right on! Sigh of relief!"

"Wait. Ah, ah, ah! Wait just a minute. The act is upheld. It's just a tax, and the government can do that."

That's what Ginsburg was ticked about. She was saying in her dissent in the majority (paraphrase), "If you're going to find this thing constitutional as a tax increase, don't even mention the Commerce Clause. Leave it alone so we can use it later." And then that led to everybody asking, "Okay, what just happened here?" They were trying to figure out if Roberts admits that the Commerce Clause aspect of this, the mandate, is unconstitutional.

That's 5-4 so it'd be, "Bye bye, Obamacare."

"But wait! No! I'm going to call it a tax. That makes it constitutional."

So you're right. One guy found the mechanism for it to be constitutional, but he had four people voting with him on it. So I know what you're getting at. You have nine people here and one of them -- one -- found the mechanism. He found four to agree with it but they still dissented on how he did it. I hope that helps. Not that it matters, but I hope it helps.

BREAK TRANSCRIPT

RUSH: I have here an excerpt of a brief submitted to the court by the Landmark Legal Foundation, which filed a brief, many people did, opposed to Obamacare. And this is on page 18. This is section 2. I'll read briefly from the brief that Landmark submitted, which was ignored. And it did not have to be, many were required to read it, don't misunderstand me, I'm just telling you some smart people here who did anticipate where this might go.

The Landmark Legal Foundation brief: "The individual mandate’s penalty provision in 26 USC Section 5000A (2011) cannot be justified as a permissible tax under any Constitutional test. Arguments proffered by the federal government that this provision constitutes a permissible exercise of Congress’s taxation authority fail under all established precedents and should be rejected by the Court."

Okay. So here is a brief filed. Anti-Obamacare. Says you can't call the mandate a tax. Now, what was the basis for which Landmark made that legal claim? Well, it's important the Constitution allows for certain types of taxes and only certain types of taxes. There are excise taxes. I asked Snerdley yesterday, "Think of all the federal taxes you can think of." You've got excise taxes, direct taxes which must be apportioned among the states. And nobody knows what that means. That's never been done before, a direct tax, apportioned among the states. It's never been done before. And, of course, the income tax, that's it. Fees at Jellystone park, for example, to ride the sleigh or whatever, an income tax which required a constitutional amendment. Number 16, that's it.

Now, what the chief justice said is that that's just labels, meaning the chief justice could not explain what kind of tax this penalty that he has found is. This tax is not permitted under the Constitution. It's not a fee. It's not an excise tax, and it's not an income tax. This tax is going to be collected by private sector insurance firms. You have to buy health insurance, right? That's the tax. That's what Roberts said. Well, where are you paying the tax? Insurance companies. There's nothing in the Constitution about that. That's why this is so unsettling here. It's under these three kinds of taxes that the Constitution allows for, excise, direct, and income, this is none of those. Yet it didn't matter. Had to save the act. And Congress has the taxing authority. But the Constitution, remember, required an amendment for there to be an income tax, wasn't in there. And there's no constitutional precedent for this kind of tax. So that's why people who are upset here are really genuinely upset. I'm going to think of an analogy.